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2018 Supreme(Sikk) 38
IN THE HIGH COURT OF SIKKIM, GANGTOK
MEENAKSHI MADAN RAI, BHASKAR RAJ PRADHAN, JJ.
Mangala Mishra @ Dawa Tamang @ Jack - Appellant
Versus
State of Sikkim - Respondent
Crl. A. No.36 of 2017
Decided On : 13-10-2018
Ms. Puja Lamichaney, Advocate (Legal Aid Counsel).
Mr. Karma Thinlay, Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutors with Mr. S. K. Chettri and Mrs. Pollin Rai, Assistant Public Prosecutor.
The main legal point established in the judgment is the importance of complying with statutory provisions, the need for conclusive proof of age, and the application of a hypertechnical approach in borderline cases of juvenility.
Headnote:
POCSO Act - Conviction under Section 5(l) - Summary of Acts and Sections: The court discussed the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) including Section 2(d) defining a child, Section 5(l) pertaining to penetrative sexual assault, and Section 6 prescribing punishment. The court highlighted the legal requirements for establishing the age of the victim and the accused, the admissibility of public documents under Section 35 of the Evidence Act, and the presumption and determination of age under Section 94 of the Juvenile Justice Act. The court emphasized the need for compliance with statutory provisions and the importance of expert opinions in determining age.
Fact of the Case:
The victim's age and the accused's juvenility were in question. The victim eloped with the accused and consented to sexual intercourse. The evidence revealed discrepancies in the prosecution's case, including the missing report and birth certificate. The accused's age was determined to be above 20 years based on an ossification test, but the court found the evidence lacking in probative value. The court leaned in favor of the accused being a juvenile due to the absence of conclusive proof of his age. Consequently, the court acquitted the accused of the offense under Section 5(l) of the POCSO Act.
Finding of the Court:
The court found that the prosecution failed to prove its case beyond a reasonable doubt. The accused was acquitted of the offense under Section 5(l) of the POCSO Act and was set at liberty. The impugned judgment and order on sentence of the trial court were set aside, and any fine deposited by the accused was to be reimbursed. No costs were awarded, and a copy of the judgment was to be forwarded to the trial court for information.
Issues: The key issues included the determination of the victim's age, the accused's juvenility, and the sufficiency of evidence to establish the offense under the POCSO Act.
Ratio Decidendi: The court emphasized the need for compliance with statutory provisions, the importance of expert opinions in determining age, and the application of a hypertechnical approach in borderline cases of juvenility. The court leaned in favor of the accused being a juvenile due to the absence of conclusive proof of his age.
Final Decision: The accused was acquitted of the offense under Section 5(l) of the POCSO Act, set at liberty, and any fine deposited was to be reimbursed. The impugned judgment and order on sentence of the trial court were set aside, and no costs were awarded.
JUDGMENT :
Meenakshi Madan Rai, J.
1. The Learned Special Judge, Protection of Children from Sexual Offences (POCSO) Act, 2012, East Sikkim, at Gangtok, convicted the Appellant under Section 5(l) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO Act”), vide its impugned Judgment dated 19-09-2017. The impugned Order on Sentence dated 20-09-2017 sentenced the Appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,000/- (Rupees two thousand) only, for the offence aforestated, with a default clause of imprisonment.
2. Aggrieved, the Appellant is before this Court, inter alia, on grounds that the seizure of Exhibit 7 the Birth Certificate of the Victim, remained unproved, the date of birth of the Victim has not been established as the contents of Exhibit 7 were not proved by any witness of the Prosecution. That, it is now settled law as to how the age of a Victim is to be assessed and none of the parameters as laid down in Mahadeo s/o Kerba Maske vs. State of Maharashtra and Another, (2013) 14 SCC 637 have been complied with although witnesses being P.W.7, P.W.8 and P.W.9 were examined with regard to the Birth Certificate. P.W.2, the mother of the Victim, from whose possession the Birth Certificate was allegedly seized has made no mention of such seizure neither has she testified about the age of the Victim to establish that she was a minor. The Register containing the entry, if at all, of the date of birth of the Victim was not furnished before the Learned Trial Court. That apart, it is also evident from Exhibit 8 the FIR, that the father of the Victim had in fact lodged a Complaint on 25-05-2016 (May 2016) informing the Police that his daughter, the Victim, aged 15, was missing since 24-04-2016 (April 2016) at 2.30 p.m. which, however, was not reduced in writing but merely entered as a Diary Report and the case taken up as one under “Missing Children” being Case No.17/2016 dated 25-05-2016. The Learned Trial Court failed to appreciate that the evidence furnished before it did not prove that the Victim was a child as defined under Section 2(d) of the POCSO Act. That, material discrepancies have occurred in the evidence of the Prosecution, as P.W.9 ASI Tek Bahadur Chettri and P.W.15 PI Ajay Rai were not able to prove the date of lodging of the FIR and the date when the Victim was alleged to have gone missing. The Section 164 Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) statement of the Victim was incorrectly considered as substantive evidence by the Learned Trial Court, while the Victim was unable to prove that her statement was recorded under the said provision. Exhibit 12 the Medical Report of the Victim and Exhibit 15 the Report of the Regional Forensic Science Laboratory (RFSL), Sikkim, have not supported the Prosecution case of penetrative sexual assault. This evidence nevertheless was relied on by the Prosecution and the embellished and uncorroborated testimony of the Victim was duly considered by the Learned Trial Court. That, reliance has been placed on the statements of P.W.9 and P.W.16 who are both Investigating Officers (I.O.) which is impermissible. That, the Learned Trial Court failed to consider the claim of juvenility raised by the Appellant before the Court and erred in ignoring the principles laid down by Section 114(g) of the Indian Evidence Act, 1872 (for short the “Evidence Act”), when material witnesses and evidence were not produced by the Prosecution such as the father of the Victim and the FIR lodged by him. Hence, in view of the aforesaid circumstances the impugned Judgment and Order on Sentence deserves to be set aside and the Appellant acquitted of the Charges.
3. Resisting the stand of learned Counsel for the Appellant, learned Assistant Public Prosecutor would contend that the Prosecution has without doubt proved the age of the Victim as Exhibit 7, the Birth Certificate of the Victim, being an offic
